Citation: Guan v. The Co-Operators Insurance Company, 2025 ONLAT 23-014551/AABS

Licence Appeal Tribunal File Number: 23-014551/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Feng Tong Guan

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

PANEL:

Nathan Prince

Henry Harris

APPEARANCES:

For the Applicant:

Vanessa Liang, Counsel

For the Respondent:

Julianne Brimfield, Counsel

Interpreters:

Jade Yu, Mandarin (February 21 and 23, 2025)

Kokchew Chang, Mandarin (February 22, 2025)

HEARD by Videoconference

February 18, 19 and 20, 2025

OVERVIEW

1Feng Tong Guan (the "applicant") was involved in an automobile accident on February 10, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by Co-operators General Insurance Company (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from February 17, 2023 to date and ongoing?

ii. Is the applicant entitled to $2,822.90 for chiropractic services, proposed by Point Grey Physiotherapy in a treatment plan/OCF-18 ("plan") dated June 23, 2023?

iii. Is the applicant entitled to $5,524.80 for occupational therapy services, proposed by Innovative OT Services in a plan dated May 31, 2023?

iv. Is the applicant entitled to $3,520.05 ($6,033.50 less $2,513.45 approved) for occupational therapy services, proposed by Innovative OT services in a plan dated March 17, 2023?

v. Is the applicant entitled to $2,094.76 ($4,294.76 less $2,200.00 approved) for attendant care assessment and other items, proposed by Miranda Mo and Associates in a plan dated June 5, 2024?

vi. Is the applicant entitled to $6,091.68 for physical therapy, proposed by Connections Physio in a plan dated April 22, 2024?

vii. Is the applicant entitled to $3,200.00 for rent, proposed by Miranda Mo and Associates in a plan dated June 5, 2024?

viii. Is the applicant entitled to $1,371.20 for devices, proposed by Miranda Mo and Associates in a plan dated June 18, 2024?

ix. Is the applicant entitled to $4,838.38 for occupational therapy/case management, proposed by Miranda Mo and Associates in a plan dated July 29, 2024?

x. Is the applicant entitled to $7,760.60 for rehabilitation support worker sessions, proposed by Miranda Mo and Associates in a plan dated July 29, 2024?

xi. Is the applicant entitled to $5,624.78 for rehabilitation support worker sessions/case management services, proposed by Complex Care & Medical Services in a plan dated September 25, 2024?

xii. Is the applicant entitled to $4,042.04 for occupational therapy, proposed by Complex Care & Medical Services in a plan dated September 20, 2024?

xiii. Is the applicant entitled to $6,601.81 for physical treatments, proposed by Connections Physiotherapy in a plan dated July 22, 2024?

xiv. Is the applicant entitled to $3,454.02 ($4,551.22 less $1,097.20 approved) for psychotherapy, proposed by Connections Physiotherapy in a plan dated September 26, 2024?

xv. Is the applicant entitled to $3,254.06 ($4,551.22 less $1,297.16 approved) for psychotherapy, proposed by Connections Physiotherapy in a plan dated November 8, 2024?

xvi. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for physical therapy, proposed by Point Grey Physiotherapy in a plan dated May 5, 2023?

xvii. Is the applicant entitled to interest on any overdue payment of benefits?

xviii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

3Prior to the hearing, the applicant brought a motion to add the following 9 issues listed above: (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi). The respondent did not object to the addition of these issues. We found that it would be efficient to allow the addition of these issues to the hearing and granted the applicant's motion.

4The applicant's motion also sought to amend the IRB issue as set out in the case conference report and order dated July 19, 2024 (the "CCRO") to increase the weekly amount at issue from $169.00 to $400.00 and to amend the IRB commencement date from November 19, 2023 to February 17, 2023. The respondent consented to these amendments, as reflected in issue (i) above.

5At the start of the hearing, the applicant withdrew the following 6 issues as listed in the CCRO: 2, 4, 7, 9, 10 and 13.

6At the start of the hearing, the parties consented to amend the following issues listed above to reflect partial approvals that were not included in the CCRO: (iv) and (v) as set out above.

7For issue (xv) above, the CCRO refers to a plan dated November 14, 2024. However, in reviewing the plan it is dated November 8, 2024 as set out above.

RESULT

8The applicant is entitled to pre-104 week IRBs in the amount of $169.00 from November 18, 2023 to April 20, 2024 and from January 19, 2025 to February 7, 2025, plus interest.

9The applicant is not entitled to post-104 week IRBs for the period February 8, 2025 to February 17, 2025.

10The applicant is entitled to the following plans, plus interest:

a. $4,838.38 for occupational therapy services in a plan dated July 29, 2024;

b. $7,760.60 for rehabilitation support worker sessions in a plan dated July 29, 2024;

c. $931.44 for psychotherapy services in a plan dated September 26, 2024;

d. $2,094.76 remaining balance for an attendant care assessment dated June 5, 2024; and

e. $600.00 plus applicable tax for items 11 and 12 on the list of proposed good and services in the plan for devices dated June 18, 2024.

11The applicant is not entitled to the other plans in dispute.

12The applicant is not entitled to an award.

PROCEDURAL ISSUES

Applicant's motion to admit documents into evidence granted

13Prior to the hearing, the applicant filed a motion dated February 14, 2025 to add the following documents which were not included in her document brief filed in accordance with Rule 9.4.3: (a) the CV of Charmaine Tong, psychotherapist, which the respondent consented to; and (b) a letter dated February 13, 2025 from Dr. Wei Tang, psychiatrist. The respondent objected to the addition of Dr. Tang's letter.

14The applicant argued that the letter is highly relevant in providing current information on her medical status and is relevant to the issues in dispute.

15The respondent objected to the introduction of this letter, submitting it would be procedurally unfair to introduce a letter dated just a few days prior to the hearing and without any other associated records of the doctor.

16We granted the applicant's motion to admit the letter into evidence based on the applicant's argument that it is relevant to the issues in dispute. In light of the timing of the documents, we invited the parties to speak to what weight they feel should be assigned to these documents in their respective closing submissions. In closing submissions, the respondent argued that Dr. Tang's letter should be given no weight as it was filed late and there are no accompanying medical records from Dr. Tang to support the statements in the letter. The applicant did not address this in closing submissions. We find that the letter lacks details on how Dr. Tang reached his views in this short, two paragraph letter. Given that the letter was filed late and in the absence of accompanying clinical notes and records of Dr. Tang, we do not find his letter to be persuasive and assign little weight to it.

Applicant's motions to introduce new documents into evidence on the final day of the hearing denied

17On the final day of the hearing, the applicant filed 4 additional motions to submit new documents as evidence. Specifically, the applicant requested inclusion of two Google AI search results relating to pancreatitis and gallbladder conditions, the website of Charmaine Tong, and 12 pre-accident photos of the applicant. The applicant submitted that these documents should be admitted because the Google answers are reliable research that is relevant to the applicant's submissions, that Ms. Tong's website is relevant in showing her qualifications, and that the photos of the applicant are relevant to show her lifestyle prior to the accident.

18The respondent objected to all 4 motions, arguing that submitting the Google AI answers is an attempt to include as medical evidence something that unreliable and cannot be verified, Ms. Tong's website is unduly repetitious as the respondent has already consented to a motion at the start of the hearing to include Ms. Tong's CV, and that the photos of the applicant provide no context as to who or when they were taken and attempt to introduce new evidence after the applicant has already testified.

19We denied the applicant's request to include these documents on the basis that the documents were submitted at the conclusion of the hearing after testimony had been heard and the respondent did not have notice of them.

ANALYSIS

The applicant is entitled to pre-104 week IRBs in the amount of $169.00 per week

20For the reasons that follow, we find the applicant is entitled to pre-104 week IRBs in the amount of $169.00 per week.

21The applicant received IRBs in the amount of $169.00 per week from February 17, 2023 to November 17, 2023 and again from April 21, 2024 to January 18, 2025.

22The applicant is now seeking: (a) entitlement for pre-104 IRBs for the periods during which the respondent did not pay IRBs, namely November 18, 2023 to April 20, 2024 and January 19, 2025 to February 7, 2025; and (b) to increase the amount of IRBs to $400.00 per week.

23We will consider each of these issues in turn.

Entitlement to pre-104 week IRBs

24We find that the applicant has established on a balance of probabilities entitlement to pre-104 week IRBs.

25To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment or self-employment. The applicant must identify the essential tasks of their employment or self-employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving on a balance of probabilities that they meet the test.

26The applicant submits that at the time of the accident, she was working as a self-employed independent contractor to Let's Relax Spa Delights Inc. ("Spa"), providing massage therapy services to Spa customers. The applicant testified that she gave massages to people, and also knows how to give cupping and acupuncture.

27In the June 30, 2023 in-home functional assessment report of Cecilia Lu, occupational therapist, Ms. Lu noted that the applicant reported she worked for 4-7 days a week, up to 8 hours a day. Each massage session ranged from 30-120 minutes, and required her to provide whole body massages to clients lying on a table at waist height or foot massages by bending over from a seated position. She was required to stand or remain bent over for a prolonged period at a time. Fine motor tasks and significant strength to push and pull using her upper extremities were required for her role. A similar pre-accident employment description was included in the October 27, 2023 occupational therapy in-home s.44 insurer's examination ("IE") report of Sara Jafri, occupational therapist.

28Based on the applicant's testimony, Ms. Lu's assessment report and Ms. Jafri's IE report, we find that the essential tasks of the applicant's self-employment are standing, walking and bending over for prolonged periods of time, fine motor skills, and significant strength and endurance to push and pull using her upper extremities.

29The applicant testified that she was unable to continue working as a massage therapist after the accident. She testified that she had generalized "pain everywhere", and specifically pain in her neck, shoulder, lower back, legs and numbness in her right hand. She complained of dizziness, nausea and headaches since the accident. The applicant testified that she cannot stand too long, nor can she bend down or crouch, and that she has weakness in her legs.

30The applicant relies on the June 30, 2023 in-home functional assessment report of Cecilia Lu, occupational therapist, who found the applicant continues to suffer from unresolved pain, neurological symptoms and other psycho-emotional and cognitive barriers that prevent her from returning to her work. The applicant also relies on the June 11, 2024 in-home attendant care assessment report of Michelle Zhao and Miranda Mo, occupational therapists, who concluded that as a result of injuries sustained, the applicant's functional deficits include an inability to complete her full-time job as a massage therapist. Further, the applicant relies on the August 8, 2024 psychological assessment report of Dr. Randy Silverman, psychologist, who found that from a psychological perspective, she is not currently considered to be capable of attending work on a consistent and reliable basis and would not be reasonably capable of coping with her work-related tasks or demands as a massage therapist and suffers from a substantial inability to perform the essential tasks of her pre-accident employment.

31The respondent submits that the applicant has not met her onus of demonstrating that she meets the test for IRBs, relying on its IE reports. For the initial stoppage of IRB on November 18, 2023, the respondent relies on the October 27, 2023 IE report of Dr. Raymond Zabieliauskas, physiatrist, who found that the applicant is fully capable of resuming her previous work as a massage therapist, without any physical restrictions or functional limitations at this time.

32In the July 22, 2024 explanation of benefits, the respondent indicated that it was reinstating IRB as of April 21, 2024 on a without prejudice basis pending receipt of IE reports.

33For the subsequent stoppage of IRB on January 10, 2025, the respondent relies on three IE reports, including the December 24, 2024 IE report of Dr. Rodney Day, psychologist. Dr. Day found that the applicant has an accident-related psychological impairment of major depressive disorder. However, he found that, from a psychological perspective, the applicant is substantially able to perform her pre-accident employment tasks. The respondent also relies on the August 20, 2024 IE reports of Dr. Farooq Ismail, physiatrist, and Dr. Verity John, neurologist, to support the proposition that the applicant is able to return to work as a massage therapist from a physical perspective.

34We find the medical reports that the applicant relies on detail impairments that are consistent with an inability to perform essential tasks of a massage therapist, as outlined above.

35During the in-home functional assessment, Ms. Lu's reported objective testing showed that the applicant demonstrated limited standing and walking tolerance, reduced balance, required external and required external support during range of motion testing, tub transfers, and bed transfers. She was observed to ambulate using a standard walker at a slow pace.

36The attendant care assessment report of Ms. Zhao and Ms. Mo indicated that the applicant has impaired balance and mobility and is at high risk for falls. A walker was recommended for mobility. The report further noted that the applicant reported high levels of pain in her right hip, lower back, neck and bilateral shoulders. She also reported general deconditioning, dizziness, headaches, sleep disturbances and fatigue. The assessment was prematurely terminated and had to be completed over two days as the therapist, Ms. Zhao, felt the applicant did not have sufficient frustration tolerance nor mental/emotional stability on the first day to safely continue with the assessment.

37Further, Dr. Silverman's psychological assessment noted that the applicant identified her physical pain, functional limitations, lack of tolerance for extended standing, depressed mood, anxiety, and low stress tolerance as the primary impediments to her return to work. He found that from a psychological perspective, the applicant is not currently capable of attending work on a consistent and reliable basis and unable to cope with her work-related tasks or demands as a massage therapist.

38When considered together, we find that these three assessments document over a period of time a substantial inability of the applicant to perform essential tasks as a massage therapist. We find the reports to be persuasive as they utilized objective functional and psychometric testing, and demonstrated consistency in findings over the period of time between the reports. Ms. Lu observed the applicant to have limited walking and standing tolerance as well as reduced balance. As well, Ms. Zhao and Ms. Mo found the applicant to have has impaired balance and mobility and to be at high risk for falls as well as decreased grip strength. These objective findings demonstrate the applicant's inability to complete the essential tasks of a massage therapist which requires walking and standing for significant periods of time, as well as significant strength and endurance to push and pull using her upper extremities.

39Although the respondent relies on its IE assessments to deny the applicant's claim, we do not find the assessments to be persuasive on the issue of a substantial inability to complete the applicant's tasks of employment. With respect to the October 27, 2023 physiatry IE report, Dr. Zabieliauskas found that there is no physical impairment of function of any kind, irrespective of causation, and that the applicant is fully capable of resuming her previous work as a massage therapist, without any physical restrictions or functional limitations at this time, notwithstanding her ongoing voiced intermittent musculoskeletal complaints.

40While we acknowledge Dr. Zabieliauskas' findings, we are not persuaded by his conclusions because his assessment did not address the ability of the applicant to stand for lengthy periods of time or the stamina required to perform repetitive physical tasks of massage therapy for a prolonged period of time. Furthermore, we find that Dr. Zabieliauskas' report is inconsistent with the October 27, 2023 occupational therapy in-home IE report of Ms. Jafri which indicated that the applicant relied on a standard walker for walking, that she demonstrated poor balance ambulating with the walker and that she could stand for 5-10 minutes with support.

41Regarding the subsequent stoppage of IRB on January 10, 2025, we did not find the IE reports persuasive in demonstrating that the applicant is physically able to return to work as a massage therapist. Dr. Ismail reported that the applicant's active range of motion at the cervical spine was 75% of normal range and limited by posterior neck pain and that she ambulates with a two-wheeled walker limping/antalgic gait on the right side. He noted that the applicant reports low back pain that is aggravated by standing for more than five minutes. Dr. John noted the applicant had give-way weakness throughout the examination, and that she stood up without walker but did not want to walk without the walker for fear that she would lose her balance. Dr. John found that the applicant experienced an accident-related concussion and has ongoing sequelae related to headache.

42Despite these findings, Dr. Ismail and Dr. John both concluded that the applicant does not suffer a substantial inability to perform the essential task of her pre-accident employment. We do not find this conclusion persuasive. The assessments did not address the ability of the applicant to stand for long periods of time or the stamina required to perform repetitive physical tasks of massage therapy for a prolonged period of time. Furthermore, the assessors own objective findings indicate that the applicant is experiencing physical limitations that would preclude her from the rigorous demands of being a massage therapist. For example, the assessors' observations of give-way weakness throughout the examination, use of a walker and limited range of motion at the cervical spine with low back pain aggravated by standing for more than five minutes, are all findings inconsistent with the strength and endurance necessary to complete the essential tasks of a massage therapist.

43We find that the applicant has proven on a balance of probabilities that she is unable to perform the essential tasks of her pre-accident employment and has therefore established entitlement to pre-104 week IRBs. Having established such entitlement, we will now consider the quantum of pre-104 week IRBs.

Quantum of pre-104 week IRBs

44We find that the applicant is entitled to pre-104 week IRBs in the amount of $169.00 per week.

45Section 4(3) of the Schedule outlines how IRB is calculated if the claimant was a self-employed person at the time of the accident. Section 4(3) provides that IRB is calculated on income from the most recent completed taxation year. This section provides that the weekly income or loss from self-employment at the time of the accident is 1/52 of the amount of the person's income or loss from the business for the last completed taxation year.

46Section 7 of the Schedule outlines how the amount of an insured's weekly IRB is calculated. Section 7(2) provides that the "weekly base amount" of an insured is determined to be 70 per cent of the amount, if any, by which the insured's gross weekly employment income and weekly income from self-employment exceeds the amount of the insured's weekly loss from self-employment, if the weekly IRB is for one of the first 104 weeks of disability, or the greater of this calculated amount and $185.00 after the first 104 weeks of disability.

47The applicant submits that she is entitled to pre-104 week IRBs of $400.00 per week based on her 2022 self-employment income.

48The respondent maintains that the applicant has not provided reliable financial document and evidence of 2022 income to support pre-104 week IRBs in the amount of $400.00 per week.

49The respondent originally approved IRBs at a rate of $169.00 per week on the basis of the applicant's T4A and Notice of assessment which indicated that the applicant's self-employment income was $12,532.00 in 2022.

50In 2024, the applicant re-filled her 2022 taxes and provided the respondent with an updated 2022 Notice of Assessment showing her 2022 declared income as $30,000. The applicant submitted that her entitlement to IRBs should be based on her updated income of $30,000 which would equate to a weekly IRB quantum of $400.00 per week.

51The applicant sought to rely on her TD bank statement to support the position that she had earned $30,000 in 2022.

52The applicant also relies on an accounting report of Davis Martindale dated November 21, 2024. In the report, Davis Martindale calculated IRBs of $400.00 per week up to July 24, 2024. In doing so, it reviewed the applicant's TD transaction history for 2022 and, noting that 2022 deposits in the applicant's bank account exceeded $66,000.00, Davis Martindale found that it is plausible to conclude the applicant earned at least $30,000.00 in business income in 2022.

53While the Davis Martindale report is helpful, we put little weight on it as we do not find that the applicant has provided reliable financial documentation and evidence to support the increase in 2022 income from $12,532.00 to $30,000.00 for the following reasons.

54With respect to the applicant's TD transaction history, the applicant did not point us to any evidence identifying which deposits, if any, related to self-employment income. At the examination under oath, when the bank summary was put to the applicant, she indicated that some deposits came for gains at the casino and some came from tips, however, she was unable to identify which items were from tips. Further, during the applicant's testimony at the hearing, she was unable to confirm the source of certain highlighted deposits during questioning by her counsel. As such, the applicant was unable to verify which deposits related to self-employment income in the applicant's bank account over the period of January 1, 2022 to December 31, 2022.

55As well, we do not find other supporting income documentation reviewed by Davis Martindale to be reliable, including an invoice the applicant produced dated December 31, 2022 in which she purported to bill to Spa $30,000 for services rendered in 2022. However, on cross-examination the applicant confirmed that this invoice was not prepared until sometime in 2024 after her 2022 amended tax return was filed, and further that the invoice purporting to be from the applicant to Spa was actually prepared by Spa. Furthermore, we find that the invoice lacks necessary detail regarding the services that were provided during 2022. The invoice does not indicate any dates or times of the alleged massage services or how the $30,000 was accrued.

56As such, we find that the applicant's quantum of pre-104 week IRBs is $169.00 per week. As the applicant has already received IRBs in the amount of $169.00 per week from February 17, 2023 to November 17, 2023 and again from April 21, 2024 to January 18, 2025, it follows that she is entitled to IRBs in the amount of $169.00 per week from November 18, 2023 to April 20, 2024 and from January 19, 2025 to February 7, 2025.

The applicant is not entitled to post-104 week IRBs

57We find that the applicant has not established entitlement to post-104 week IRBs for the period February 8, 2025 to February 17, 2025 (the last day prior to the start of this hearing).

58To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

59The applicant offered no submissions to demonstrate her entitlement to post-104 week IRBs. Other than taking note of her pre-accident self-employment as a massage therapist, there was no evidence presented as to the applicant's education, training or experience to show the scope of work that she is reasonably suited to engage in. Regarding the February 13, 2025 letter of Dr. Tang, as mentioned above, we assign little weight to the letter as it was not accompanied by any clinical notes and records or future explanation. While the letter states that Dr. Tang does not believe that the applicant can return to work, this is not the test for post-104 IRBs. The letter does not speak to the applicant's ability to engage in any employment or self-employment. For these reasons, we do not find the letter persuasive or relevant to this issue. As such, we find that the applicant has not shown that she suffers from a complete inability to engage in any employment or self-employment to which she is reasonably suited.

60Accordingly, as the applicant provided no further submissions or evidence regarding post-104 IRBs, we find that the applicant has not established on a balance of probabilities that she is entitled to post-104 week IRBs for the period February 8, 2025 to February 17, 2025.

Chiropractic services

The applicant is not entitled to the plan for $2,822.90 for chiropractic services

61We find the applicant has not proven on a balance of probabilities that the plan for chiropractic services is reasonable and necessary.

62To receive payment for a plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

63The June 23, 2023 plan was prepared by Georgia Palantzas, chiropractor, and sought funding of $2,822.90 for 14 1 hour therapy sessions, 14 0.5 hour exercise sessions, an initial assessment and documentation.

64A treatment plan in and of itself is insufficient to establish entitlement to a benefit. The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan. In addition, the August 20, 2024 IE report of Dr. Farooq Ismail, physiatrist, found that the applicant sustained soft tissue injuries and opined that the plan is not reasonable or necessary.

65Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for chiropractic services is reasonable and necessary.

Occupational therapy

The applicant is not entitled to the $3,502.05 remaining balance for the plan for occupational therapy services

66We find the applicant has not proven on a balance of probabilities that the remaining balance of the plan for occupational therapy services is reasonable and necessary.

67The March 17, 2023 plan was prepared by Sheila Don, occupational therapist, and sought funding of $3,520.05 ($6,033.50 less $2,513.45 approved), comprised of 10 sessions for motor and living skills training $2,294.20; travel time $1,496.30; mileage to treatment $247.50; planning service $997.50; preparation service $199.50; documentation support activity $598.59; and documentation support activity for claim form $200.00.

68The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan.

69Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the remaining balance of the plan for occupational therapy is reasonable and necessary.

The applicant is not entitled to the plan for $5,524.80 for occupational therapy services

70We find the applicant has not proven on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary.

71The May 31, 2023 plan was prepared by Cecilia Lu, occupational therapist, and sought funding of $5,524.80, comprised of 10 sessions for motor and living skills training $2,294.20; travel time $997.50; mileage to $192.50; planning service $997.50; preparation service $199.50; documentation support activity $598.59; documentation support activity for claim form $200.00; and memory foam gel seat cushion $45.00.

72The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan.

73Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for occupational therapy is reasonable and necessary.

The applicant is entitled to the plan for $4,838.38 for occupational therapy/case management

74We find on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary.

75The July 29, 2024 plan was prepared by Michelle Zhao, occupational therapist, and sought funding of $4,838.38, comprised of 8 sessions for motor and living skills therapy $1,596.00; travel time $798.00; planning service $798.00; therapy cognition and learning $399.00; education $399.00; documentation support activity $648.38; and documentation support activity for claim form $200.00. The goals of the plan include pain management, improve independence, safety and comfort with activities of daily living ("ADLs"), and education on self-management principles.

76The applicant relies on the June 11, 2024 s. 25 in-home attendant care assessment report of Michelle Zhao and Miranda Mo, occupational therapists. This report recommends various occupation therapy interventions including education and training on self-management principles; and strategies to facilitate increased participation in ADLs. We find that the recommendations of Ms. Zhao and Ms. Mo are aligned with the recommended services in the plan.

77In the September 4, 2024 IE report of Stewart Tsuji, occupational therapist, Mr. Tsuji supports the plan for occupational therapy in its entirety as reasonable and necessary.

78The respondent relies on the December 24, 2024 psychological IE report of Dr. Day, who found the plan was not reasonable and necessary from a psychological perspective.

79We find that both the s. 25 assessment and the occupational therapy IE report support a finding that the plan is reasonable and necessary. We put little weight on Dr. Day's finding that the plan is not reasonable and necessary from a psychological perspective, as the plan is for occupational therapy services and both the applicant and respondent's occupational therapy assessors were in agreement as to the services under the plan being both reasonable and necessary. Further, Dr. Day specifically stated that he was unable to comment on whether the plan is required with respect to the applicant's physical injuries. We note that the majority of services in the plan are physical interventions.

80For these reasons, we give greater weight to the opinions of the applicant's and respondent's occupational therapy assessors regarding the plan.

81The respondent further submitted that case management is only available as a benefit only under the Schedule where an insured has a catastrophic impairment, and therefore not available to the applicant. While we agree that the Schedule has such a limitation for "case manager services", we do not find that the actual services set out in the plan include case manager services. Although the applicant has listed the plan under the heading "occupational therapy/case management", we find the actual services to be limited to occupational therapy.

82Accordingly, we find on a balance of probabilities that the plan for occupational therapy is reasonable and necessary.

The applicant is not entitled to the plan for $4,024.04 for occupational therapy services

83We find the applicant has not proven on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary.

84The September 20, 2024 plan was prepared by Elsa Poon, occupational therapist, and sought funding of $4,042.04 for 8 sessions of therapy cognition and learning. The plan goals include intervention to promote home safety and return to activities of normal living.

85The additional notes section of the plan pointed us to the June 11, 2024 s. 25 in-home attendant care assessment report of Michelle Zhao and Miranda Mo, however, we find this report does not address whether the plan is reasonable and necessary. Further, we find the plan to be duplicative to the services found in the July 29, 2024 plan prepared by Ms. Zhao, which also covers home safety and ADLs, and which we have already found to be reasonable and necessary above.

86Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for occupational therapy is reasonable and necessary.

Rehabilitation support worker sessions/case management services

The applicant is entitled to the plan for $7,760.60 for rehabilitation support worker sessions

87We find on a balance of probabilities that the plan for rehabilitation support worker sessions is reasonable and necessary.

88The July 29, 2024 plan was prepared by Michelle Zhao, occupational therapist, and sought funding of $7,760.60, comprised of 24 3-hour sessions of training motor and living skills provided by Katie Lau, rehabilitation counselor/therapist. The goals of the plan include increase community reintegration, decrease social isolation, and facilitate return to pre-accident leisure/social activities.

89The applicant relies on the June 11, 2024 s. 25 in-home attendant care assessment report of Michelle Zhao and Miranda Mo, occupational therapists. This report primarily recommends various occupation therapy interventions, but also includes rehabilitation support worker intervention to reinforce education and strategies provided during OT sessions, to provide promptings and assistance to access the community for functional tasks, and to prevent further deterioration of the client's physical, psychosocial, and cognitive well-being. We find that the recommendations of Ms. Zhao and Ms. Mo are aligned with the recommended services in the plan.

90In the September 4, 2024 IE report of Stewart Tsuji, occupational therapist, Mr. Tsuji supports the plan in its entirety as reasonable and necessary on the basis that it outlines the need for rehabilitation support sessions (24 sessions) in the applicant's native language which can be used to provide education as well as physical and emotional support to help her to participate in structured activities and prevent isolation and further physical deconditioning as an integral step to returning her to a normal active daily routine.

91The respondent relies on the December 24, 2024 psychological IE report of Dr. Day, who found the plan was not reasonable and necessary.

92We are persuaded by the s. 25 assessment of Ms. Zhao and Ms. Mo and the occupational therapy IE report of Mr. Tsuji as both the s. 25 and IE assessors agree that the plan is reasonable and necessary. We are not persuaded by Dr. Day's finding in his psychological IE report that the plan is not reasonable and necessary, since his discussion of the plan is unclear and his opinion is not consistent with the preponderance of the medical evidence, including the IE report of Mr. Tsuji. Dr. Day's conclusion with respect to this plan refers to the services being provided by a registered social worker and also discusses psychotherapy services, however, the plan does not outline either of these. Instead, the plan provides for services of a rehabilitation support worker to assist with community reintegration, the reasonableness and necessity of which Dr. Day does not comment on.

93The respondent also submitted that case management is only available as a benefit only under the Schedule where an insured has a catastrophic impairment, and therefore not available to the applicant. While we agree that the Schedule has such a limitation for "case manager services", we do not find that the actual services set out in the plan include case manager services. Although the applicant has listed the plan under the heading "rehabilitation support worker sessions /case management", we find the actual services do not involve case management and, in any event, do not propose the services of a "qualified case manager" as defined in the Schedule.

94Accordingly, we find on a balance of probabilities that the plan for rehabilitation support worker sessions is reasonable and necessary.

The applicant is not entitled to the plan for $5,624.78 for rehabilitation support worker sessions/case management services

95We find on a balance of probabilities that the plan for rehabilitation support worker sessions/case management services is not reasonable and necessary.

96The September 25, 2024 plan was prepared by Elsa Poon, occupational therapist, and sought funding of $5,624.78, largely comprised of: (i) $1,862.08 for 16 2-hour sessions of training social skills provided by Kelvin Leung, rehabilitation counselor/therapist; and (ii) $1,396.64 for Mr. Leung's travel time. The plan goals are stated as case management to coordinate medical/rehab activities and ensure the applicant receives proper medical and rehab services. As well, to return to activities of normal living.

97The additional notes section of the plan pointed us to the June 11, 2024 s. 25 in-home attendant care assessment report of Michelle Zhao and Miranda Mo, however, the services outlined in this plan appear to be a duplication of the services detailed in the previous rehabilitation support worker plan above, which we have already found to be reasonable and necessary.

98Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating the plan for rehabilitation support worker sessions/case management is reasonable and necessary.

Physical therapy

The applicant is not entitled to the $200.00 remaining balance the plan for physical therapy services

99We find the applicant has not proven on a balance of probabilities that the remaining balance of the plan for physical therapy services is reasonable and necessary.

100The May 5, 2023 plan was prepared by Georgia Palantzas, chiropractor, and sought funding of $1,300.00 of which $1,100.00 was approved, leaving a balance of $200.00.

101The applicant did not provide any submissions or direct us to any evidence to what the $200.00 unpaid portion related to or to otherwise support entitlement to this remaining amount.

102Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating the remaining balance of the plan for physical therapy is reasonable and necessary.

The applicant is not entitled to the plan for $6,091.68 for physical therapy services

103We find the applicant has not proven on a balance of probabilities that the plan for physical therapy services is reasonable and necessary.

104The April 22, 2024 plan was prepared by Dustin Yen, chiropractor, and sought funding of $6,091.68, comprised of 16 sessions of chiropractic sessions, 8 massage treatments and 8 sessions of acupuncture.

105The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan.

106Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating the plan for physical therapy is reasonable and necessary.

The applicant is not entitled to the plan for $6,601.81 for physical therapy services

107We find the applicant has not proven on a balance of probabilities that the plan for physical therapy services is reasonable and necessary.

108The July 22, 2024 plan was prepared by Dustin Yen, chiropractor, and sought funding of $6,601.81, comprised of 12 sessions of chiropractic sessions, 12 physiotherapy sessions and 24 sessions of acupuncture.

109The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan.

110Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating the plan for physical therapy is reasonable and necessary.

Psychotherapy services

The applicant is entitled to the plan for $931.44 for psychotherapy services

111The September 26, 2024 plan was prepared by Farzaneh Pariman, and sought funding of $3,454.02 ($4,551.22 less $1,097.20 approved) for psychotherapy services to be performed by Charmaine Tong, social worker. The plan as provided by the applicant has strikethrough lines on what was submitted and new information entered on what items appear to have been partially approved by the respondent on November 7, 2024. Based on this, we understand the plan proposed the following (with denial or partial approval noted in brackets):

i $200.00 for completion of OCF-18 (denied);

ii $3,590.72 for 16 1.5-hour psychotherapy sessions provided by a social worker at a rate of $224.42 per session, equivalent to $149.61 per hour (partially approved for 8 sessions at $137.15 per session, equivalent to $91.43 per hour, total of $1,097.20); and

iii $650.00 for psychological counselling progress report (denied).

112The goals of the plan are to provide rehabilitation for the applicant's fragile psychological state and extreme difficulty coping with her accident-related anxiety, depressed mood, pedestrian/passenger anxiety, PTSD symptoms, somatic preoccupation and possible concussive symptoms.

113The applicant relies on the August 8, 2024 s. 25 psychological assessment report of Dr. Randy Silverman, psychologist. This report diagnosed the applicant with major depressive disorder with anxious distress, and recommended 16 one-hour sessions of evidence-based cognitive behavioral therapy ("CBT") for rehabilitative purposes. We find that the recommendations of Dr. Silverman are generally aligned with the recommended services in the plan, however, Dr. Silverman recommended one-hour sessions, not 90-minute sessions as set out in the plan.

114In the December 24, 2024 psychology IE report, Dr. Day found the plan to be partially reasonable and necessary as to 16 one-hour sessions of psychotherapy. Dr. Day also found $200.00 for completion of OCF-18 to be reasonable and necessary but limited the preparation time to 4 hours for completion of a psychological counselling progress report as reasonable and necessary.

115Both Dr. Silverman and Dr. Day recommend 16 hours of psychotherapy treatment for the applicant, however, the respondent has only paid for 12 hours of treatment at $91.43, for a total of $1,097.20. As such, we find that the applicant is entitled to 4 additional hours of psychotherapy treatment. In addition, we are persuaded by Dr. Day's report which recommended 4 hours for completion of a psychological counselling progress report and $200.00 for completion of the OCF-18 as reasonable and necessary.

116The parties also disagreed on the hourly rate that should be payable to Ms. Tong. The rate in the plan for Ms. Tong was submitted at $224.42 per plan 90-minute session, which is equivalent to $149.61 per hour. In the explanation of benefits dated January 10, 2025, the respondent indicated it is prepared to pay up to $91.43 per hour for the services of a psychotherapist and/or social worker as these type of service providers are not listed as regulated health care professionals under the Professional Services Guideline issued as Superintendent's Guideline No. 03/14 (the "PSG").

117The PSG establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.62 per hour. The PSG does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers, such as counsellors and psychometrists, is $58.19 per hour. The respondent's offered hourly rate of $91.43 exceeds the rate for unregulated providers under the PSG.

118Given that the PSG is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. Rather, she must prove that it is reasonable on a balance of probabilities.

119The applicant submits that the appropriate rate for Ms. Tong's services under the plan is $149.61 per hour as she was providing the same services as a psychologist, and that she has CBT training and experience providing CBT treatment to accident patients. The applicant submits that Ms. Tong is both a registered social worker and also a registered psychotherapist. The applicant relies on the CV of Ms. Tong to demonstrate her qualifications.

120We do not find the applicant has met her onus to prove on a balance of probabilities that Ms. Tong should be paid the hourly rate $149.61 that is applicable to psychologists under the PSG. We agree with the respondent that the applicant has not pointed us to evidence that establishes that Ms. Tong is a registered psychotherapist. The applicant has not established that Ms. Tong is registered with the College of Registered Psychotherapists of Ontario (CRPO). As well, while her CV does reference taking one course in CBT, there was no information as to the length or scope of such course. As such, we find this distinguishable from the Tribunal decision that the applicant cited to support her argument, J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT), as that case involved a registered psychotherapist who was found to be "highly trained" in CBT. As such, we do not find there to be sufficient evidence before us as to Ms. Tong's qualifications and experience to warrant the higher hourly rate proposed by the applicant.

121Accordingly, we find on a balance of probabilities that $931.44 of the $3,454.02 remaining balance for psychotherapy services is reasonable and necessary as follows:

i. $200.00 for completion of OCF-18 (item 1 in Part 12 of the plan);

ii. $365.72 for 4 additional hours of psychotherapy sessions (item 2 in Part 12 of the plan); and

iii. $365.72 for completion of psychological counselling progress report (item 3 in Part 12 the plan) which is based on 4 hours at a rate of $91.43 per hour.

The applicant is not entitled to $3,254.06 remaining balance for the plan for psychotherapy services

122We find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for psychotherapy services is reasonable and necessary.

123The plan dated November 8, 2024 appears to be duplicative of the September 26, 2024 plan addressed above. Both plans were prepared by Farzaneh Pariman in the same original amount of $4,551.22, and sought 16 1.5-hour psychotherapy sessions provided by the same social worker, Ms. Tong. The applicant did not provide any submissions or supporting documents to explain the context for what appears to be a duplicative plan, or direct us to any evidence to support entitlement to this plan.

124Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for psychotherapy is reasonable and necessary.

Attendant care assessment

The applicant is entitled to the $2,094.76 remaining balance for an attendant care assessment

125We find on a balance of probabilities that the remaining balance of the plan for an attendant care assessment is reasonable and necessary.

126The June 5, 2024 plan was prepared by Michelle Zhao, occupational therapist, and sought funding of $2,094.76 ($4,294.76 less $2,200.00 approved), comprised of $2,000.00 for an attendant care assessment, $200.00 for documentation support for claim form, and the balance for facilitation $598.50; provider travel time $299.25; education $299.26; planning service $299.25; and other documentation support activity $598.50. The plan related to hospital discharge services and is dated the same day the applicant was discharged from the hospital following a stay for suicidal ideations.

127In the September 4, 2024 occupational therapy IE report, Mr. Tsuji supports the plan for an attendant care assessment in its entirety as reasonable and necessary to assist in the coordination of services to ensure her physical safety and mental health needs due to her discharge home without supports following hospitalization for an acute mental health crisis. However, in the December 24, 2024 psychological IE report, Dr. Day found that the applicant has an accident-related psychological impairment of major depressive disorder, however, he opined that the plan was not reasonable and necessary from a psychological perspective.

128In considering these IE reports, we find Mr. Tsuji's report to be persuasive in supporting the necessity of the plan. Mr. Tsuji completed an extensive 3 hour assessment of the applicant on August 19, 2024, approximately 2 months after she was discharged from the hospital. He observed that the applicant was experiencing significant limitations in her mobility and standing tolerance for personal care due to dizziness, weakness and risk of falls, and that these limitations affect her ability to perform meal preparation, hygiene related cleaning tasks, exercises and bathing. Mr. Tsuji also reviewed the hospital records, including a letter dated June 6, 2024 from Dr. Catherine Cheng, psychiatrist at North York General Hospital, which formed the basis for the respondent removing the applicant from the Minor Injury Guideline on July 22, 2024 due to Dr. Cheng's findings of psychological impairments as a result of the accident.

129The respondent partially approved the plan as to $2,200.00 for the assessment portion of the plan and documentation support per the limit set out in s. 25(5) of the Schedule. However, the remainder of the plan which Mr. Tsuji opined in the IE report was reasonable and necessary, relate to other items as detailed above, which are not subject to the limit applicable to assessments.

130Accordingly, we find on a balance of probabilities that the $2,094.76 remaining balance for an attendant care assessment is reasonable and necessary.

Rent

The applicant is not entitled to $3,200.00 for rent

131We find on a balance of probabilities that the plan for rent is not reasonable and necessary.

132The June 5, 2024 plan was prepared by Michelle Zhao, occupational therapist, and sought funding of $3,200.00, comprised of $3,000.00 for rent ($300/ month for 6 months) and $200 for documentation support activity for claim form.

133The applicant did not provide any submissions or direct us to any evidence to support entitlement to this plan.

134Accordingly, we find on a balance of probabilities that the applicant has not met her onus of demonstrating that the plan for rent is reasonable and necessary.

Devices

The applicant is entitled to $600.00 plus applicable tax for devices

135We find on a balance of probabilities that the plan for devices is partially reasonable and necessary as to $600.00 plus applicable tax, comprising $535.00 for a rollator walker with basket and $65 delivery cost (items 11 and 12 on the list of proposed goods and services in the plan).

136The June 18, 2024 plan was prepared by Michelle Zhao, occupational therapist, and sought funding of $1,371.20, comprised of 11 devices, including $535.00 for a rollator walker with basket.

137The applicant directed us to the September 4, 2024 IE report of Stewart Tsuji, in which Mr. Tsuji supports partially supports the plan as to the rollator walker and delivery cost. Mr. Tsuji notes that a rollator walker would help to improve her stability while walking. The applicant did not provide any submissions or direct us to any evidence to support entitlement to any other devices in this plan outside of the rollator walker with basket.

138The respondent submitted that the applicant already has a walker and is not using it. The respondent refers to surveillance footage of the applicant on August 15, 2024 in which the applicant was observed walking around a shopping mall without the aid of a walker.

139We agree with the applicant with regards to the rollator walker and delivery cost. the plan for occupational therapy in its entirety as reasonable and necessary. The applicant has been consistently reported to be utilizing a walker to aid in her balance while walking and this need for a walker was supported by Mr. Tsuji in his IE report. We did not find anything in the surveillance to be inconsistent with the reported need for a walker and as such do not find the surveillance persuasive as it relates to the walker being reasonable and necessary.

140Accordingly, we find on a balance of probabilities that the applicant is entitled to $600.00 plus applicable tax, comprising $535.00 for a rollator walker with basket and $65 delivery cost (items 11 and 12) on the list of proposed goods and services in the plan.

Interest

141Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As we have found that the applicant is entitled to payment for certain benefits, interest will apply to those amounts that remain overdue, starting from the date they became payable until the date of payment.

Award

142The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant has the onus to demonstrate entitlement to an award on a balance of probabilities.

143It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, a special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

144We find that the respondent's behavior does not reach that high standard. The respondent's reliance on their own accounting reports and s. 44 reports, regardless of whether or not we found such reports persuasive, does not amount to a deliberate withholding of benefits. As such, the applicant is not entitled to an award.

ORDER

145For the reasons outlined above, we order that:

i. The applicant is entitled to pre-104 week IRBs from in the amount of $169.00 from November 18, 2023 to April 20, 2024 and from January 19, 2025 to February 7, 2025, plus interest.

ii. The applicant is not entitled to post-104 week IRB for the period February 8, 2025 to February 17, 2025.

iii. The applicant is entitled to the following plans, plus interest:

a. $4,838.38 for occupational therapy services in a plan dated July 29, 2024;

b. $7,760.60 for rehabilitation support worker sessions in a plan dated July 29,2024;

c. $931.44 for psychotherapy services in a plan dated September 26, 2024;

d. $2,094.76 remaining balance for an attendant care assessment dated June 5, 2024; and

e. $600.00 plus applicable tax for items 11 and 12 on the list of proposed good and services in the plan for devices dated June 18, 2024.

iv. The applicant is not entitled to the other plans in dispute.

v. The applicant is not entitled an award.